A federal appeals court is refusing to reconsider its August ruling in which it said the federal government may spy on Americans’ communications without warrants and without fear of being sued.

The original decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals this summer reversed the first and only case that successfully challenged President George W. Bush’s once-secret Terrorist Surveillance Program.

Without comment, the San Francisco-based appeals court announced Wednesday that it would not rehear (.pdf) the case again with a larger panel of 11 judges, effectively setting the stage for a Supreme Court showdown. The appeals court Wednesday also made some minor amendments (.pdf) to its August ruling, but the thrust of it was the same as before.

Not only does this mean the plaintiffs will have to take the case to the Supreme Court (if it will hear the case), but it also means the damages awarded ($20,000 each for the two plaintiffs and $2.5 million in legal fees) have been reversed.

This also means the Bush's Terrorist Surveillance Plan will continue unchecked as citizens will be unable to bring suits against the government for warrantless spying. The decision rests on a couple of dubious items: a "missing" sovereign immunity waiver and a document mistakenly sent to the plaintiffs that was later designated a "state secret."

The San Francisco-based appeals court had ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws...

A lower court judge found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former al-Haramain Islamic Foundation lawyers Wendell Belew and Asim Ghafoor.

The document was later declared a state secret, removed from the long-running lawsuit and has never been made public.

Concern about the government's ability to designate nearly anything as a "state secret" in order to prevent the release or use of possibly damning evidence has already been discussed by the Supreme Court during oral arguments in the Clapper v. Amnesty International case. In this case, the belated "state secret" designation effectively limited the plaintiffs to citing circumstantial evidence, which is far less effective than producing an actual document showing that the NSA was doing exactly what the plaintiffs claimed it was.

Between the "sovereign immunity" that is unlikely to ever be waived and the ability to designate damning evidence post-facto as "state secrets," the NSA has set itself up with the ability to run a constitutionally dubious, but legally sound, domestic spying program. The system of checks and balances our nation was formed on now more closely resembles a series of erected walls protecting government agencies from being held accountable for their actions.

Dec. 7

I've heard of contracts that try to remove the right to sue, but I've never heard of Congress having the power to prevent you from suing. That's absurd. Doesn't that mean that congress could eliminate the entire Judicial Branch?

Stock up the bomb shelter, were in for a long night.

This is not a comment for or against guns or gun control, just what I see happening. When a people have no recourse against gross grievances against them by their government, they all eventually respond in one way. Between the current repressive governments and how close the USA is moving to them, I fear an uprising stirring. And I'm worried this is coming closer to being an inevitable instead of a possibility.

A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.

George Washington - Purported speech to Congress, January 7, 1790 in the Boston Independent Chronicle, January 14, 1790.

It's simple: the US government has been invaded by people who hate our country. They do everything in their power to destroy the cornerstones of our nation -- the Constitution and Bill of Rights. We keep sending our soldiers abroad to "fight for freedom" in countries which couldn't possibly harm us, let alone affect our rights. Meanwhile, the REAL war against our freedoms is occurring from within.

Just wait until the TSA unveils their taser bracelets. All hell is going to break loose.

Whattaya complainin' bout? It's perfectly legal!

See now why I rail against legalisms and morality even in the minor area of copyright? They're just like you pirates only on larger scale! Don't expect those thugs to uphold your freedom of speech or care about the (mistaken) legalisms that Mike wants Megaupload to freely operate under!

When gov't officials can "legally" violate the clear intent of the Constitution and all common law since Magna Carta, and without the least twinge of moral conscience, then civilization won't last much longer. The Rich are going for absolute power; they always do.

But cheer up: you'll be able to see truly "free market capitalism" in action, unfettered by laws or regulations!

Maybe I remember this incorrectly, but I thought that there always were certain hurdles to jump before one is allowed to sue the federal government. This is not not new, what is new it the blatant in your face attitude the government seems to be taking in this regard.

Wolf meet Hen...

I would have been surprised if the wolf guarding the hen house would have shot himself...

Who's to stop the Govt from illegally spying on us?

"William Binney, a former official with the National Security Agency, recently said that domestic surveillance in the U.S. has increased under President Obama, and trillions of phone calls, emails and other messages sent by U.S. citizens have been intercepted by the government."

"In the closing lines of a documentary by Laura Poitas, Binney notes that just because 'we call ourselves a democracy, it doesn’t mean we will stay that way.' The real problem, he says, is that 'people may have nothing to say about it… we haven’t had anything to say so far.'”

Federal Traitors

Wow, these 3 "so called" federal judges took a huge shit on the US Constitution and the 4th Amendment. I felt sick to my stomach reading this article, because I became apparent that these federal judges are grossely negligent in the constitutional duties. They use the US Constitution as toilet paper, and we should no longer recognize their authority. I think our fore fathers of this great nation would have probably labeled these federal judges as traitors.